Tussle Over Delhi Services Ordinance

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The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 was promulgated by the President in May 2023 to provide for a comprehensive scheme of administration of services in Delhi.

An Ordinance was promulgated by the Indian President, giving the Lieutenant Governor of Delhi power over services in the National Capital Territory (NCT). 

The ordinance came after the Supreme Court handed over the control of services in Delhi, excluding police, public order and land, to the elected government.

The ordinance seeks to set up a National Capital Civil Service Authority (NCCSA) for the transfer of and disciplinary proceedings against Group-A officers from services in the National Capital Territory (NCT) of Delhi.

Issues with the Ordinance

Issue of “Triple Chain of Accountability”

In May 2023, the Supreme Court explicitly recognised this by formulating the concept of the “triple chain of accountability”.

The triple chain of accountability is integral to representative democracy and proceeds as follows:

Civil servants are accountable to the cabinet.

The cabinet is accountable to the legislature, or the Legislative Assembly.

The Legislative Assembly is (periodically) accountable to the electorate.

Any action that severs this “triple chain of accountability” fundamentally undermines the core constitutional principle of representative government, which is at the bedrock of our democracy.

Power Struggle

The ordinance has led to a power struggle between the elected government and the Lieutenant Governor.

The elected government claims that the ordinance undermines their authority and violates the Constitution.

The Lieutenant Governor argues that the ordinance is necessary to ensure proper governance in Delhi.

Issues with Provisions of the Ordinance

The ordinance gives the Lieutenant Governor the power to make appointments to key bureaucratic positions in Delhi.

It also gives the Lieutenant Governor the power to transfer and post officials, which was previously the sole responsibility of the elected government.

The ordinance also states that in case of any difference of opinion between the Lieutenant Governor and the elected government, the former's opinion will prevail.

Constitutional Issues

The elected government claims that the ordinance violates the Constitution, which gives them the power to make appointments and transfer officials.

The Lieutenant Governor's increased powers are a violation of the principle of federalism, which is enshrined in the Constitution.

Governance Issue

The ordinance has created confusion and uncertainty among the civil service officers working in Delhi government departments. The ordinance has also affected the delivery of public services and welfare schemes in Delhi.

Possible Consequences of the Ordinance

It may create a constitutional crisis and a power tussle between the Centre and the Delhi government over the control of civil services in the national capital.

It may undermine the autonomy and democracy of the Delhi government and the will of the people who elected it.

It may hamper the effective administration and governance of Delhi, as the civil service officers may face uncertainty and confusion over their roles and responsibilities.

It may invite legal challenges and judicial scrutiny, as the ordinance seems to violate the Supreme Court’s judgment and Article 239AA of the Constitution.

What Is Article 239AA of The Constitution?

Article 239 AA was inserted in the Constitution by The Constitution (69th Amendment) Act, 1991 to give Special Status to Delhi following the recommendations of the S Balakrishnan Committee that was set up to look into demands for statehood for Delhi.

It says that the NCT of Delhi will have an Administrator and a Legislative Assembly.

Subject to the provisions of the Constitution, the Legislative Assembly “shall have power to make laws for the whole or any part of the NCT with respect to any of the matters in the State List or Concurrent List in so far as any such matter is applicable to Union territories” except on the subject of police, public order, and land.

Further, the Article 239AA also notes that L-G has to either act on the aid and advice of the Council of Ministers, or he is bound to implement the decision taken by the President on a reference being made by him.

Also, Article 239AA, empowers the L-G to refer a difference of opinion on ‘any matter’ with the Council of Ministers to the President.

Thus, this dual control between L-G and the elected government leads to a power tussle.

Ordinances in Indian Polity

Article 123 of the Constitution of India grants the President certain law-making powers to promulgate ordinances when either of the two Houses of Parliament is not in session, in urgent situations.

Hence, it is not possible for the ordinances to be issued by Parliament.

When an ordinance is promulgated but the legislative session is yet to commence, the ordinance remains in effect as law. It has the same force and effect as an Act of the legislature.

But it requires subsequent ratification by Parliament within six weeks of its reassembly.

An ordinance promulgated by the President has a maximum validity of six months and six weeks from the date of its promulgation.

The Governor of a state can also issue ordinances under Article 213 of the Constitution of India, when the state legislative assembly is not in session.